Third Party Petitions as a Means of Protecting Voluntarily Isolated Indigenous Peoples

Author:Nickolas M. Boecher
Position:J.D. candidate, May 2012, at American University Washington College of Law
58FALL 2009
by Nickolas M. Boecher*
*Nickolas M. Boecher is a J.D. candidate, May 2012, at American University
Washington College of Law.
There are more than one hundred isolated indig enous
groups worldwide with more than half living in Peru
and B razil.1 Loggers, colonists, and oil companies are
encroaching on the lands of these groups, which are at an addi-
tional risk of extinction fr om diseases to which they have no
immunity.2 A procedural element o f the Inter-American Com-
mission on Human Rights allowing the entry of petitions by third
parties may provide an important means to ensure the future pro-
tection of these groups, their culture, and the forests they inhabit.
Oil and gas development in the western Amazon may soon
increase r apidly.3 These blocks overlap some of the most bio-
logically diverse regions on the planet that are still inhabited by
native indigenous group s, many of which are voluntarily iso-
lated.4 The combination of oil, primary rain forest, and isolated
indigenous groups is a recipe for disaster.
A line of decisions from the Inter-American human rights
system recog nizing indigenous prop erty rights offers hope.
The Inter-American Commission on Human Rights (“Commis-
sion”) is a human rights body that exercises jurisdiction to hear
contentious human rights cases over al l Member State s of the
Organization of the Ameri can States (“OAS” ).5 The Commis-
sion can submit a ca se to the Inter-American Court of Human
Rights (“Court”) if t he offending state has rati fied the Ameri-
can Conv ention on Human Rights and has explicitly accepted
the Court’s jurisdiction.6 The States encompassing the western
Amazon - Brazil, Peru, Ecuador, Colombia and Bolivia - have
all done so.7
In The Ma yagna (Sumo) Awas Tingni Community v. Nica-
ragua,8 the Court ordered Nicaragua to grant property rights to
the Awas Tingi people who faced threats of logging o n their
ancestral lands.9 T his landmark case re cognized the rights of
indigenous groups to the land that they inhabit based on their
need to sustain themselves and their culture.10 With this prec-
edent, the Court has simultaneously permitted other indigenous
groups to establish their rights to property, and p resented a
potential solution to the problem of environmental degradation
in the Amazon.
Indigenous cultures have lived with the Amazon forest for
millennia, and its composition is a result of their active manage-
ment.11 The UN has recognized the importance o f indigenous
culture and its ability to contribute to sustainable development.12
Since Awas Tingni, o ther cont acted indi genous gro ups have
succeeded in asserting indigenous property rights before th e
Court.13 Studies have demonstrated that contacted tribes rapidly
acquire mod ern technologies an d after a single generation ca n
drastically move away from the lifestyle s that maintained their
population in closer balance with the surrounding environment.14
The Co mmission permits third parties to submit petitions
on behalf of an injured party if the actual injured party is unable
to submit a petition for itself.15 Concerned parties have submit-
ted petitio ns in favor of isolated group s and have successfully
elicited precautionary measures from the Commission in their
favor.16 This procedural mechanism provides a means to simul-
taneously protect indigenous groups, their culture, and the for-
ests they inhabit.
There are also challenges to the establishment of indigenous
property rights for isolated groups, many associated with effec-
tive representation. First, it may be difficult to determine the true
interests of isolated groups. Second, self-interested parties could
enter a petition in the name of an isolated group to advance their
own interests. Similarly, there is a risk that third party petition-
ers will not be zealous advocates. Finally, there are often severe
difficultie s in gathering evidence documenting human rights
abuses of silent victims in remote regions.
Further, Inter-Am erican Court p recedent, while promis-
ing, also poses problems. The Court ha s limite d indige nous
land rights to the traditional use of the territory, therefore, state
parties c an still grant concessions for the extraction of natural
resources after consultation with the affected group.17 Addition-
ally, the Court has permitted state parties to m ake the ultimate
determination of which lands are returned to indigenous groups
after cons ultation with them. 18 These rulings are incompatible
with the nature of isolated groups, which face extinction on con-
tact with foreign diseases, are not available for consultation, and
live an itinerant lifestyle irrespective of established boundaries.
A possible solution includes referencing neighboring co n-
tacted groups as a proxy for the interests of uncontacted groups,
as well as for a source of information about where traditional
territories lie. Additionally, n atural boundari es such as rivers
or settlements of contacted groups can assist in delimiting land
rights. If similar solutions are not implemented soon, it could be
to the detriment of the rights of isolated groups, their culture, and
the f orests they inhabit. Any future Court decision, th erefore,
must be tailored to the groups’ unique and compelling situation.
Endnotes: Third Party Petitions as a Means of Protecting Voluntarily
Isolated Indigenous Peoples continued on page 89